I-9 compliance

US law requires employers to complete Form I-9 for each individual they hire to work in the United States. 

For this reason, we recommend that immigrant employers and employees contact our immigration lawyers in New Jersey in advance . This way we can guide you properly in this processing process.

I-9 Form Compliance In 2024

Compliance with Form I-9 is essential, as the Immigration Reform and Control Act (IRCA) of 1986 requires employers to check their employees for their:

1. Employment eligibility, and
2. Identity.

At the same time, civil and criminal penalties were created for individuals who violate employment-related statutes. 

In fact, IRCA is enforced by Immigration and Customs Enforcement (ICE) to ensure that American employers comply with regulations.

ICE primarily targets all those employers who hire unauthorized immigrants to work in the United States. The involvement of our immigration attorney Carolina T. Curbelo can protect you from the legal complications of this.

What Is Form I-9?

Form I-9 , Employment Eligibility Verification, is a USCIS form intended to verify a worker’s eligibility based on the E-Verify website. 

Pursuant to 8 CFR § 274a.2, all U.S. employers must complete this form when:

• Recruiting a worker.
• Referring an employee for a fee, or
• Hiring an individual to work in the United States.

Latest Form I-9 Compliance Updates

Recent updates to this form include the following:

• Less number of pages. These have been reduced from 15 to 8 pages. Such sections have gone from 1 and 2 to a single sheet. It should be noted that previous fields have not been removed and several of them, such as employer certification, have been merged.
• Simplification of steps. Certain sections were moved. These are:
  • Section 1 Preparer/Translator certification area to a separate Supplement A that employers can use when required.
  • Section 3 reverification and rehire to an independent Supplement B that employers can use when needed. 
• Implementation to mobile devices. Form I-9 can now be completed on tablets and mobile devices. To do this, they must be downloaded to the device and opened using Adobe Acrobat Reader.
• Change of terms. Removed the use of “alien authorized to work” in Section 1 and replaced it with “noncitizen authorized to work.” 
• New instructions added. Additionally, a check box has been added for E-verify employers to indicate when the I-9 form has been reviewed.

Do not hesitate to contact our firm for a complete list and to obtain step by step assistance in this complex matter. It is key to have an expert by your side to ensure that everything is done in the most efficient way.

What Versions Of The I-9 Form Can Be Used?

According to the information provided by USCIS, the following is understood:

• Employers began using the new I-9 form on August 1, 2023.
• The I-9 form dated “10/19/2019” is valid until October 31, 2023.
• As of November 1, 2023, only the new I-9 form, dated “08/01/23,” can be used.
• I-9 forms in Spanish that have been revised with dates of “01/08/23” are available for use only in Puerto Rico.

Likewise, employers can remotely view their employees’ Form I-9 documents as long as they are enrolled in E-Verify.

E-Verify Remote Employer Verification

The new E-Verify process is an alternative to the in-person physical examination of Form I-9 documents. Therefore, to qualify for this exam, employers must:

1. Sign up for E-Verify. If you are already registered, skip this step.
2. Remotely examine workers’ I-9 documents electronically and via live video. 
3. Maintain copies of all documents examined with the worker’s I-9 form.
4. Create a case with E-Verify if the worker is new.

It should be noted that this new alternative DHS process for E-Verify employers is optional. Therefore, they can continue with the physical verification of individuals with I-9 documents.

Who Is Required To Comply With Form I-9?

All US employers are required to file this form for each of their employees. However, the I-9 is only required for employees who are new, rehired, or need reverification.

Who Is Not Required To File Form I-9

The following individuals are not required to file an I-9 form:

• Independent contractors.
• Individuals employed by a contractor providing contract services. For example, a temporary employment agency.
• Individuals employed for occasional domestic work. However, the work must be based on a private home and intermittently or sporadically.
• Those individuals who do not physically work in the US 
• Employees hired on or before November 6, 1986 are also not required to complete and submit this form. 
• Employees based in the Commonwealth of the Northern Mariana Islands (CNMI) will also not have to complete the I-9 form. However, they must have been hired on or before November 27, 2009.

How To File Form I-9?

USCIS states that the I-9 form should not be filed with ICE. As a result, employers must:

• Keep form I-9 on file for each individual on your payroll who needs to complete that document.
• Retain the I-9 form for 3 years after the date of hire or for one year after the end of employment, whichever is earlier. 
• Have the forms available for inspection by officials from DHS, the Department of Justice (DoJ), or the United States Department of Labor (USDOL).

For more information on this topic, consult our immigration attorney. 

Ongoing Responsibilities To Ensure Form I-9 Compliance

American employers will have to abide by the following responsibilities:

• Storage: I-9 forms can be stored on paper, microfiche, microfilm, or electronically.
• Update: Employers will be responsible for keeping track of due dates and reverifying a worker if necessary.
• Retention: All employers must retain valid I-9 forms for all their eligible workers for 3 years or one year after the job ends, whichever comes first.

Prevention Of Discrimination

42 US Code § 12112 prohibits employers from discriminating against individuals based on various elements, including:

1. Nationality, or
2. Immigration status.

These protections apply during the firing, recruiting, hiring, E-Verify, or Form I-9 processes. Employers with 15 or more employees shall be prohibited from discriminating against applicants or employees in any capacity for reasons of:

• Race.
• Color.
• Nationality.
• Gender.
• Religion.
• Sexual orientation
• Gender identity.
• Disability.
• Genetic information.
• Age.
• Pregnancy. 

Discrimination And Retaliation

Employers may not discriminate when:

• They hire a new employee.
• They terminate an individual’s employment.
• They verify the authorization of an employee to work.
• Electronically confirm identity and employment authorization with E-Verify, even if the process is tentative non-confirmation from E-Verify.

Likewise, employers may not retaliate against an employee who:

• File a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) or the Immigration and Employee Rights Section (IER). 
• You assert your rights or the rights of others under established anti-discrimination statutes.
• Participate in an investigation or prosecution of a complaint of discrimination.

Types Of Employment Discrimination Covered By The Law That Applies The IER

There are 4 types of employment discrimination covered by this law. These types are:

Citizenship Or Immigration Status

Employers may not discriminate in hiring, recruiting, or firing based on citizenship, immigration status, or type of employment authorization. This means that the following individuals will be protected from discrimination:

• American citizens, either by birth or immigrants who successfully completed the process to obtain American citizenship.
• Non-citizen nationals.
• Permanent residents. That is to say, the immigrants who have obtained the Green Card.
• Foreigners who have applied for and obtained political asylum in the United States.
• Refugees.

National Origin

Employers may not discriminate when hiring, recruiting, and firing an employee based on their:

• Place of birth.
• Country of origin.
• Native language.
• Accent.
• Ancestry.

This also applies to discriminating against an employee simply because their accent is perceived, looks, or sounds “foreign.”

Retaliation Or Intimidation

Employers may not intimidate, coerce, retaliate, or threaten an employee if the employee has engaged in protected activity. For example, when someone:

• Is involved in an IER or EEOC lawsuit or investigation.
• Files a charge with IER or EEOC.
• Enforces the rights of another individual under the law that the EEOC or IER applies.
• Challenge actions that may be discriminatory under the law.
• Files a charge with the EEOC or IER.

Unfair Documentary Practices

Employers may not:

• Request more documentation or documents other than those required to verify the individual’s employment authorization and identity.
• Reject documents that appear reasonably genuine and relate to the employee, or
• Specify certain documentation that the worker must submit.

If any of these points are breached, the federal government will penalize employers.

What Else Can I Do To Prevent Discrimination During The Employment Verification Process?

The Immigration and Nationality Act (INA) prohibits employers from discriminating against their employees during the hiring, verification, or firing process. Therefore, employers cannot:

• Refuse an acceptable receipt of an authorized document.
• Ask to see work authorization documents before a job offer is accepted.
• Request or suggest specific documents of the worker.
• Refuse to accept documents or hire individuals because their work authorization will expire shortly.

If a worker experiences any type of discrimination by their employer, they can file a claim with IER.

Audits On Form I-9

ICE conducts audits after issuing a Notice of Inspection (NOI) in order to discourage the employment of illegal immigrants in the United States. These audits are intended to discover non-compliance with the I-9 form.

Any violation or error will result in fines. As a result, employers are encouraged to hire our immigration attorney to help them prepare for this audit if they have received a NOI.

It should be noted that the NOI is not the Notice of Intent to Deny (NOID). In our blog, you can find information about this notification and about the Request for Evidence (RFE). 

What Are The Penalties For Non-Compliance With Form I-9?

Employers who violate the laws may be subject to:

• Civil fines and/or criminal penalties.
• Disqualification of government contracts. 
• Court order requiring the employer to hire the discriminated individual and pay back wages.

Civil And Criminal Offenses To Avoid

Employers must avoid committing the following violations:

• Civil violations. For example: 
  • Failure to notify DHS of a Final Confirmation (FNC) of a worker’s employment eligibility.
  • Unlawful discrimination against an individual authorized for employment, whether in hiring, firing, or recruitment.
  • Committing or participating in any documentary fraud to satisfy a requirement or benefit of the verification process.
• Criminal violations. For example:
  • Engaging in an illegal pattern or practices in hiring, recruiting, or referring unauthorized non-citizens.

What Documents Are Needed To Verify Employment Eligibility?

Based on their eligibility, employees may submit the following documents based on their list:

A-List

• United States Passport or US Passport Card.
• Green Card or Alien Registration Receipt Card, also known as Form I-551.
• Employment Authorization Document Card.
• Foreign passport bearing a stamp of Form I-551 or an imprinted notation of Form I-551.
• Federated States of Micronesia (FSM) or Republic of the Marshall Islands (RMI) passport with Form I-94, Arrival/Departure Record or Form I-94A.
• Foreign passport with permit I-94 or permit I-94A that have an endorsement to work in the US.

B-List

• Driver’s license or identity card. It is important that the card is issued by a state or peripheral territory of the US. In addition, it must contain a photograph, name, date of birth, gender, etc. Some examples are:
  • Identification card issued by federal, state or local government agencies or entities.
  • US Coast Guard Merchant Marine Card
  • Native American tribal document.
  • Military identification card.
  • School identification card.
  • Canadian driver’s license.
• DNI for those under 18 years of age. If minors under 18 years of age cannot present any of the above documents, they may submit any of the following records:
  • School.
  • Kindergarten.
  • Clinician or doctor. 

Did you know that it is possible to get a driver’s license in New Jersey for undocumented immigrants ? You can learn more about this document on our blog.

List C

• Unrestricted US Social Security account number card.
• Consular Report of Birth Abroad, also known as Form FS-240.
• Certificate of Report of Birth issued by DHS (Form DS-1350).
• Original or certified copy of the birth certificate issued by a state, municipal authority, county, or outlying territory of the US In addition, it must have an official seal.
• Identification card for use by a US resident citizen (Form I-179).
• Employment authorization document issued by DHS.
• Native American tribal document.

E-Verify For Proper Compliance With Form I-9

Thanks to the E-Verify system, employers can confirm the employment status of an employee, thus comparing the information obtained with the records of:

1. DHS, and
2. The Social Security Administration (SSA).

Although, for most employers, using this system is voluntary, there are certain employers that are required to use it yes or yes. For example, federal contractors or those who have been ordered to do so in a court order.

How Is Employment Eligibility Verified?

Employers have to verify the documents submitted and determine if they are reasonably genuine. In case a document does not appear to be valid, the employer can reject it or ask for other alternatives that are valid.

Similarly, employers can reverify an employee’s status by completing Section 3 of Form I-9. This section must be completed if the employment authorization or work authorization documents have expired.

Verification Considerations In Form I-9 Compliance

Employers may have an authorized individual complete section 2 or 3 of the form on behalf of the company. Said individual could be a:

• Agent.
• Foreman.
• Public notary.
• Personnel officer.

Employers will not need official documentation to assign an authorized individual. However, the employer will be held responsible for any errors or illegal actions committed by the authorized individual throughout the verification process.

What Should Employers Do If A Worker Has Used A False ID For Form I-9 Verification?

If an employer finds out that a worker has used false documentation and is not authorized to work in the US, they must immediately terminate their employment. 

If the workers can prove that they have the proper documents and have achieved US citizenship, the employee has the right to continue their employment. However, the employer must complete a new Form I-9 with the most recent documents.

How To Avoid Possible Errors In Verification And Have A Good Compliance With Form I-9?

This process can be really confusing. Therefore, it is possible that common problems or oversights occur when doing it. To avoid this, we advise the following guidelines:

• Only valid documents should be accepted.
• Failing to tell employees what type of documents they must submit.
• Never accept photocopied documents, only accept originals.
• Require job applicants to complete an I-9 form if an official job offer has been accepted.

Who Is Responsible For Correcting Errors On The I-9 Form?

The person responsible for correcting errors on the I-9 forms is the same individual who filled out the form. This means that Section 1 will be the responsibility of the employee, while all other sections are the responsibility of the company.

Why Must An Internal Audit Be Performed For Form I-9 Compliance?

An internal audit is the best option to determine guilt and discover possible errors in the event of an ICE inspection. Therefore, audits must be carried out frequently if you work in an industry with high rates of employee turnover.

How Can Employers Correct Errors On The I-9 Form?

If simple mistakes are made, they can be easily corrected by making the appropriate corrections using a different color ink than the original information. However, the date and initials of the individual making such changes must be included.

If there are multiple errors, a new I-9 form must be completed and the original form attached with a note explaining the situation.

Why Do You Need The Help Of Our New Jersey Immigration Attorney To Complete The I-9 Form?

Whether it is to complete and file the I-9 form or any other immigration matter, it is key to have the help of an immigration attorney. 

At Curbelo Law, our attorney Carolina has represented hundreds of immigrants in all types of immigration matters in the country. Regardless of whether they need legal advice to work legally or fully legalize their situation in the country, our attorney will be able to help you.

Therefore, whether you are an employer or an employee, please do not hesitate to contact us in advance. You can call, email, or schedule an appointment with our office, located in Ridgewood, New Jersey.